People define (and refine) their own unique identities in many ways over time, with gender being only one component of the rich tapestry that makes up each human being. A person can change their gender identity in many ways, including by changing their name, pronouns, gender identifier, and inner and/or outer physical characteristics, among other gender expressions, and this profound process of self-discovery can touch on many aspects of a person’s life and relationships. This post aims to help people working through a shift in their gender identity to understand the impacts of these changes on their estate planning.
Estate planning exists to affirm a person’s wishes during their incapacity and on death. In this way, a thoughtful estate plan will affirm the person’s gender identity as part of the expression of those wishes. This means ensuring that the appropriate name(s), gender identifier, and pronouns are used for everyone.
1. Assumed and legal names. A person may use different names on their legal documents. All names so used should be referenced in the Will(s) and Powers of Attorney, whether the person is the one making the documents (the testator), the one administering them (the executor/attorney), or the one receiving a benefit (a beneficiary), though this needs to be approached carefully.
People can use a new name by (1) informally adopting it in social settings, or (2) formally changing government-issued identification. A person may use their new name inconsistently on legal documents, especially where third-parties allow an informally adopted name for their forms. Sometimes these inconsistencies also remain for a time while government identification is being updated.
Will(s) and Powers of Attorney should reference all the person’s informal and legal names that they still use. This is crucial for the testator but is also important when naming the executor(s) and beneficiaries. Otherwise, a third-party may not recognize the individual (whether in administering the document or making payment to a beneficiary) and it may mean a Court application to fix the issue. If it cannot be fixed, this may invalidate the document or the relevant clause. Note that this does not apply to a person who has been able to update their legal documents and is able to use the new name consistently.
A name associated with a person’s former gender is called their deadname. It can cause great emotional distress and gender dysphoria for a person to use this name. Estate planning documents should only refer to this if needed (that is, if legal documents still refer to it), and the deadname should not be used as the person’s primary reference in the Will(s) and Powers of Attorney. It is best if it is only included in some nominal way, like as a footnote.
2. Gender identifier and pronouns. Ideally, the Will(s) and Powers of Attorney use gender-neutral language to refer to all individuals, again whether the person is the testator, executor or beneficiary. If not possible, the person’s referenced gender should align with how they currently identify.
In Canada, all government identification allows the gender identifiers “X” (meaning nonbinary/another gender), female, or male. There are processes to make gender changes on government forms (though it is not a consistent process across the country and some agencies are still updating forms). Sadly, not all countries recognize gender “X”, and not all allow government identification to reflect anything other than the gender assigned at birth. The United States is a primary example of both issues.
If the person uses government identification where the gender “X” identifier is not supported, or where they can only select the gender assigned at birth, they may be forced to select a gender they no longer identify with. As a result, legal documents may make inconsistent references to the person’s gender. For example, their Canadian passport might list them as gender X and their American passport will list them as either male or female.
Ideally, Will(s) and Powers of Attorney should use gender-neutral language in relation to all individuals, including pronouns and descriptions of familial relationships (“child” instead of son or daughter; “spouse” instead of wife or husband; etc.). If this is not possible, all such references should align to the person’s gender as they currently identify. If there are inconsistencies between this and government identification, the Will(s) and Powers of Attorney should include a general clause confirming that differences between the gender referenced and a person’s legal gender identifier(s) do not invalidate the document(s) or the relevant clause(s) and are deemed to refer to the person notwithstanding the discordance with their government identification. Any reference to the person’s previously assigned gender should be avoided if possible or referenced only nominally the same as with their deadname as above.
It is also important to consider the implications of changes in gender identity for practical decisions, like medical and funeral instructions.
3. Medical and funeral instructions. Medical and funeral planning should reflect a person’s gender identity. To that end, choosing the right attorney(s) and executor(s) is critical. Leaving appropriate instructions can also be helpful.
Through a Power of Attorney for Personal Care, a person aged 16 or older can appoint the attorney(s) who will make medical decisions on their behalf if they lose capacity. Medical decisions include health care, housing, and other aspects of a person’s life such as meals and clothing. A person can also prepare a directive which sets out their wishes in respect of particular care. For example, the person may include a directive confirming the use of gender-affirming hormone therapy or surgical interventions, to the extent such treatments can be approved in the absence of capacity, or of the selection of gender-affirming housing or other maintenance of social activities.
A person can also provide funeral instructions to their executor(s) through their Will and even, in some cases, pre-plan their funeral service. The Will should refer the executor(s) to the relevant service provider to carry out any pre-planned instructions and/or may leave specific directions around the type of service requested and any gender-affirming garments to be included (for example, if they wear a binder).
Many of these decisions can directly impact a person’s gender identity while they are alive or affirm it on their death, making it important to choose attorney(s) and executor(s) who understand the importance of the decisions and will respect the person’s identity. Depending on the person’s family relationships, the attorney(s) and executor(s) may also need to be comfortable (and aware) to step in quickly and ensure appropriate decisions are being made.
The goal with the above is to ensure the estate plan accurately reflects, and, more importantly, honours a person’s gender identity. Anyone walking this path is encouraged to seek advisors who provide a safe space for these discussions and ensure appropriate planning is done.
The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.
